1. Introduction
On 29.7.2016, a person named Kaushal Kishor and his family members are travelling from Noida to Shahjahanpur on National Highway 91 to attend the death ceremony of a relative, they were waylaid by a gang there. The gang snatched away cash and jewellery in the possession of above said Kaushal Kishor and his family members, and they also gang raped the wife and minor daughter of him.[2]
The said incident reported in Kaushal Kishor v. State of Uttar Pradesh,[3] primarily concerned issues relating to fundamental rights and the scope of constitutional remedies, particularly in the context of statements made by public functionaries. That incident was before enactment of Bharatiya Nyaya Sanhita, 2023 (hereinafter, the BNS). At the time of the occurrence, the legal framework governing criminal offences was the Indian Penal Code, 1860 (hereinafter, the IPC), which did not contain any specific provision exclusively addressing mob violence or lynching as a distinct offence. Consequently, such acts were prosecuted under general penal provisions punishing crimes like robbery, rape, unlawful assembly, and other cognate offences. This often resulted in a fragmented approach, where the collective nature and societal impact of mob violence were not adequately captured within the erstwhile statutory scheme. That mob violence would constitute a grave threat to the rule of law and an affront to the very foundations of a civilised society. Mob violence, by its very nature, represents a breakdown of Constitutional order, where individuals arrogate to themselves the authority of the State and act as judge and executioner. Such conduct is antithetical to the core Constitutional values of equality, dignity, and due process.
In this context, the Parliament of India has framed Section 103(2) of the Bharatiya Nyaya Sanhita, 2023, which provides that when a group of five or more persons, acting in concert, commits murder on grounds such as race, caste, community, sex, place of birth, language, personal belief, or any other similar ground, every member of such group shall be held liable. Each member shall be punished with death, or imprisonment for life, or imprisonment for a term not less than seven years, and shall also be liable to pay a fine.[4]
Whether the introduction of Section 103(2) of the Bharatiya Nyaya Sanhita, 2023 recognizing mob violence as a distinct offense, effectively addresses the societal problem uncovered by the Indian Penal Code, 1860, and whether it adequately captures the collective nature, gravity, and constitutional implications of mob-based crimes in India?
2. Mob Lynching as a Legislative Gap in Criminal Law: A Pre-2023 Narration
Prior to 2023, in India there was no explicit or dedicated legal provision specifically addressing mob lynching or collective violence. However, various provisions of the IPC were applied to deal with such incidents, depending on the nature and gravity of the offence. Section 302 of the IPC deals with the punishment for murder. It provides that any person who commits murder shall be punished with death or imprisonment for life, and may also be liable to pay a fine. In cases of mob lynching resulting in death, this provision is often invoked against the accused. Section 304 of the IPC addresses culpable homicide not amounting to murder. It applies in situations where death is caused without the intention required for murder but with knowledge that the act is likely to cause death. Under this provision, the offender may be punished with imprisonment for life or with imprisonment up to ten years, along with a fine, depending on the circumstances of the case. Section 325 of the IPC prescribes punishment for voluntarily causing grievous hurt. A person who causes serious bodily injury intentionally, except in cases covered by grave and sudden provocation, may be punished with imprisonment for a term of up to seven years, along with a fine. This provision is invoked in cases where mob violence results in severe injury except death.
Further, Section 120B of the IPC deals with criminal conspiracy. It applies where two or more persons agree to commit an illegal act or a legal act by illegal means. If the conspiracy relates to a serious offence punishable with death, life imprisonment, or rigorous imprisonment for a term of two years or more, the punishment is the same as for abetment of that offence. In other cases, the punishment may extend to six months’ imprisonment, a fine, or both. Thus, although there was no specific law addressing mob lynching as a distinct offence, the existing provisions of the IPC were utilised to prosecute individuals involved in such acts based on the consequences of their conduct. Section 34 IPC deals with acts done by several persons in furtherance of a common intention. It means that when a group of people commit a crime with the same intention, each person is held equally responsible, even if their individual roles are not clearly identified. This provision is useful in cases involving large crowds where it is difficult to determine who did what. However, it requires proof that all the accused shared a common intention. Section 149 IPC deals with offences committed by members of an unlawful assembly. It provides that if any member of such an assembly commits an offence in furtherance of the common object, every member of the group can be held liable. This section is wider than Section 34, as it does not require proof of prior intention; mere membership in the group with a shared common object is sufficient to establish liability.
Society had witnessed the incidents directly or through digital media, where a group of people committed violence together. This is called mob lynching. It happens when a crowd takes the law into its own hands and publicly punishing a person, believing the person has done something illegal. Mob lynching is not justice but a crime. Instead of following the legal system and the courts, people try to sanction their own punishment. Such acts are called extrajudicial, meaning they are done outside the law and without legal authority. Looking at history, this type of behaviour is not new one. From ancient times, when people started living in groups, each group had its own rules. These rules guided what people should or should not do. If someone had broken these rules, the group would punish the offender together. At the time, such collective punishment was accepted as a normal means of maintaining law and order in the group. However, in modern society, this kind of action is not acceptable because justice must be delivered only through the procedure prescribed by the law.[5]
India has witnessed a significant and sudden rise in mob violence incidents in recent years, posing a serious challenge to the fundamental principle of democracy, which is the protection of life and personal liberty. Despite being the world’s largest democracy, such incidents reflected the failure to safeguard these basic rights. Several factors contribute to the rise of mob lynching, including growing intolerance among people who take the law into their own hands based on personal moral judgments, deep-rooted social biases related to caste, class, and religion committing hate crime, political reasons. The increase in cow vigilantism has also played a major role in triggering such violence. Furthermore, delay in the justice delivery system diminish the public confidence on legal institutions, while inefficiency in police administration and weak investigation processes further facilitated such unlawful activities. As a result, mob lynching has become a serious threat to social harmony and bottlenecks to the overall development of society. Incidents such as the killing of Mohammad Akhlaq on suspicion of cow slaughter, the murder of Abhijit and Nilotpal in Assam over rumours of child-lifting, and the Palghar mob lynching case, along with other cases like those of Shankar Saikia, Sanatan Deka, and Rituparna Pegu, have created widespread fear, chaos, and public outrage across the country.[6]
Such incidents have not only shocked the conscience of society but have also drawn serious concern from the judiciary, civil society, and international observers. The Supreme Court of India has repeatedly condemned mob lynching as a horrendous act of mobocracy and emphasized that no individual or group has the right to take the law into their own hands. In the landmark case of Tehseen Poonawalla v. Union of India,[7] the Court issued detailed guidelines to prevent mob violence, including the appointment of nodal officers in each district, preventive measures, and strict action against those involved in such crimes.
The persistence of mob lynching incidents highlights serious gaps in implementation and enforcement. One of the major challenges lies in the absence of a specific and comprehensive central legislation that directly addresses mob lynching as a distinct offence. The role of misinformation, particularly through social media platforms, has significantly contributed to the escalation of mob violence. False rumours related to child kidnapping, cow slaughter, or religious sentiments spread rapidly, provoking fear and anger among people. In many cases, individuals act impulsively without verifying the authenticity of such information, leading to tragic consequences. Another important aspect is the psychological dimension of mob behaviour. When individuals act as part of a crowd, their sense of personal responsibility diminishes, and they are more likely to engage in violent acts that they would not commit individually.
3. A Rose among thorns: The Operational Reach of Criminal Law Against Mob Violence
‘Old wine in a new bottle, the wine whets not the judicial palette, but the bottle merely dazzle’[8]
Hon’ble Mr. Justice K. VINOD CHANDRAN
IPC has governed substantive criminal law in India for more than a century. Despite its colonial origins, it has undergone multiple amendments to adapt to changing societal needs. The enactment of the BNS was projected as a step towards decolonising criminal law. However, questions arise as to whether the BNS introduces real transformation or reproduces IPC provisions with minor modifications. A significant portion of the BNS retains the core structure, definitions, and principles of the IPC. Most offences, such as murder, theft, cheating, criminal breach of trust, and rioting, continue with substantially similar ingredients. The changes are largely confined to section renumbering. Reordering of chapters and Simplification or modernisation of language. Thus, the BNS appeared more as a rearranged and linguistically updated version of the IPC rather than fundamentally a new Code.
Many of the fundamental ideas of the IPC are still present in the BNS, despite justification of decolonization. The classification of offenses, general exceptions, and criminal culpability all adhere to the same framework that was put in place during colonial administration. This would made wonder if the BNS really broke away from its colonial past. The shift from IPC to BNS may be viewed as symbolic, reflecting a post-colonial identity. However, symbolism alone does not amount to substantive legal reform. True reform is marching of the criminal law principles towards rational society, but not merely renaming and reorganising existing provisions. Although BNS improved on clarity, inclusivity, and accessibility aspects, but reliance on IPC foundations limited its transformative potential. Persons in the legal fraternity perceived it as a copy-pasted instrument with costume change rather than a genuinely new Criminal Code. The BNS intended to represent an important step in modernising the criminal law in India. However, in substance, it remained largely rooted in the IPC. The BNS can therefore be characterised as a rephrased and reorganised continuation of the IPC rather than a complete legal transformation. Future reforms must focus on broader structural and philosophical changes to modernise India’s criminal justice system truly.
Even though BNS was criticised by Judges, Advocates, Academicians etc., for only rephrasing the provisions from the IPC, it still brought important positive changes. It penalised distinct offences likemob violence, terrorism, organised crime, and snatching, which were not categorized as a distinct offence under the IPC. This made the law better preventing the distinct types of crime. The categorization of mob violence drawn special attention due to the frequent incidents in the recent years. Similarly, penalizing terrorism and organised crime strengthens the legal system to protect national security and public safety. The BNS also removed offence struck down by the Judiciary viz., Adultery, Unnatural offences has been removed or changed. This shows respect for personal freedom and modern values. So, even though the BNS is mostly similar to the IPC, these changes have shown some improvement. It is not a completely new law, but a partially updated version of the old law with some modern features.
4. Mob Violence under 103(2) of the BNS; A Partial Shield or a Lacuna!?
The Statement of Objects and Reasons of the BNS explains that maintaining communal harmony, peace, and unity among people is crucial to the country’s growth and stability. India is known around the world for maintaining unity despite its diversity among religions, cultures, and languages. However, these differences had leading to conflicts in the society. Some people take advantage of such situations for their own benefit, making things worse. They may influence others to commit serious crimes like violence and even murder based on religion, caste, or other differences leading to increase in hate-based crimes. Many developed countries have already enacted special laws to address hate crimes. India also needs strong and effective laws to prevent such crimes and to stop people from creating hatred between different groups. At present, the law mainly punishes those who commit the crime directly. But it often fails to punish those who secretly encourage or instigate others to commit these crimes. These hidden persons are often the main reason behind such offences, and unless they are punished, such crimes cannot be controlled. Also, some people repeatedly commit such crimes due to extreme thinking and intolerance. Such repeat offenders should be given stricter punishment. Section 103(2) of the BNSpunishes members of a group who commit murder based on religion, caste, community, gender, place of birth, language, or similar reasons. However, this section does not clearly punish those who encourage or instigate the group to commit such murder but are not directly involved in the act.
While Section 103(2) of the BNS, 2023, is an important step in recognising mob lynching as a separate offence, it selectively applicable to cases resulting in death and silent on cases resulting in serious harms such as grievous injuries, acid attacks, sexual offences like rape, and property damage. In the later cases, the law still depends on general provisions relating to hurt, sexual offences, or mischief, along with the principles of common intention or unlawful assembly. This brings back the same lacuna encountered earlier, especially in proving the role and intentions of each person in a large crowd. As a result, although Section 103(2) effectively deals with cases of death due to mob lynching, it does not redress the injured victims due to the mob violence. This shows that there is still a gap in the law. Therefore, a more comprehensive legal approach is needed to include all forms of mob-related offences, not just those resulting in death, so that accountability can be ensured consistently.
5. Mob Lynching as an Offence of Collective Liability: The Non-Essential Role of Mens Rea
Although provisions identical to Section 34 and Section 149 of the IPC reflected in Sections 3(5) and 190 of the BNS, 2023, could be used to deal with mob lynching even before introduction of Section 103(2) of the BNS, there was still an important gap in the law. These provisions are based on the ideas of common intention and common object, which require proof that the accused shared a prior plan or a common unlawful purpose. However, mob lynching incidents are usually sudden and unplanned, with people joining the crowd without any clear agreement. Because of this, it becomes very difficult for the prosecution to prove that all the accused shared a common intention or object.
The offence of mob lynching under Section 103(2) of the BNS, is different from traditional criminal law principles. Normally, criminal law requires proof of individual intention, that is, each person must be shown to have intended to commit the crime. Concepts like common intention and common object also require proof that the group had a shared plan or at least know that such an offence was likely to occur. However, proving the cases of mob lynching is very difficult. The Hon’ble Supreme Court in Tehseen S. Poonawalla v. Union of India,[9] condemned mob lynching and coloured it as a serious and separate kind of crime that threatening the rule of law. Earlier, in Masalti v. State of Uttar Pradesh,[10] the Court accepted that, in large groups, it is not always possible to prove what each person did, and that being part of the group and participating can be enough to establish liability.
This was reaffirmed in Lalji v. State of Uttar Pradesh,[11] where the Court stated that individual responsibilities become less significant once the group’s shared goal is established. This concept is further discussed in Section 103(2). Instead of demonstrating a person’s precise objective, it concentrates more on their involvement in the mob. This means that if someone actively participated in the mob violence, they can still be held liable even if it is impossible to prove that they personally intended to cause death. This approach reflects real-life situations in which mob violence occurs quickly and without clear planning. It also sends a strong message that anyone who joins such violent groups must take responsibility for the consequences.
Despite its progressive intent, Section 103(2) of the BNS, 2023 had faced serious criticism, both in theory and practice. One major concern is that, in attempting to overcome the difficulty of proving individual intention in cases of mob lynching, the provision may weaken the fundamental principle of mens rea in criminal law. By placing greater emphasis on mob participation, there is a risk of attributing liability without clear proof of individual intent.
This concern is reflected in a bail application allowed by the Hon’ble Madurai Bench of Madras High Court,[12] the deceased were suspected of attempting to steal goats and were attacked by a group of villagers, including the accused, using wooden logs and physical assault. Due to the injuries sustained, the victims died on the way to the hospital. An FIR was under Sections 191(2), 191(3), and 103(2) of the BNS, 2023, (unlawful assembly and mob lynching resulting in death). While considering the bail application, the Court observed that no motive was alleged between the petitioners and the deceased. It further noted that the prosecution had not clearly established the presence of the petitioners at the scene with the intention to cause death. Relying on the principle laid down by the Supreme Court with respect to Section 304 IPC (now Section 105 BNS), the court emphasised that criminal liability requires proof of knowledge or intention, and mere involvement without such a mental element is insufficient. Considering these factors, the Court allowed the petition and granted conditional bail. This case is significant as it highlights the continuing importance of proving mens rea even in cases involving mob violence under Section 103(2) of the BNS. It shows that mere participation in a mob is insufficient to establish guilt and that the prosecution must still prove intent or knowledge.
Mob violence is not a spontaneous or isolated act of a single individual; rather, it is a collective manifestation of aggression in which multiple persons act in unison against a victim. Even where the formation of the mob appears sudden, the continuity of participation, the coordinated nature of the attack, and the common targeting of the victim clearly indicate a de facto prior concert. The law must therefore recognise that intention in such cases can develop dynamically and instantaneously, rather than only through prolonged premeditation. In this context, the requirement of proving a distinct and individual mens rea becomes impractical and unrealistic. If every accused is permitted to evade liability on the ground that their specific intention to cause death is not independently established, it would result in a collapse of liability in mob lynching cases. The collective nature of the offence would then operate as a shield for offenders rather than as a basis for liability. Accordingly, active participation in mob violence, when coupled with a shared objective discernible from the collective conduct of the group, ought to suffice for establishing criminal liability, without requiring stringent proof of antecedent conspiracy or individualized mens rea for each participant.
To insist otherwise would risk rendering the law ineffective in addressing mob violence and would inadvertently legitimize extrajudicial action, thereby undermining the foundational principles of the Rule of Law. As the author aptly analogizes, combating mob violence resembles responding to a sudden flood: the imperative lies in preventing the deluge in its entirety rather than expending resources on tracing the precise source of each contributing stream. Just as flood control demands addressing the aggregate threat rather than isolating individual rivulets, so too must the law respond to the collective menace posed by the mob, lest doctrinal rigidity render justice unattainable and embolden future acts of lawlessness.
6. Conclusion
The legislation intends to prevent the grave peril posed by murder through mob lynching. Section 103(2) of the BNS, 2023, marks a significant evolution in Indian criminal law by expressly recognising mob lynching as a distinct and serious offence. It moves the collective and hateful character of mob violence. The provision operates as a necessary legal shield, enabling the state to effectively address crimes that strike at the very foundation of constitutional order and public justice. While the importance of mens rea is undeniable, an overly rigid insistence on proving individual intention risks undermining the law’s effectiveness. Mob violence, by its very nature, is a collective act where intention may arise instantaneously and be reflected through coordinated conduct and explicit prior agreement. Therefore, the concept of “acting in concert” must be understood in a broader sense, where participation in the mob and the resulting consequences, particularly death, serve as strong indicators of shared intention and common purpose.
If the law fails to adopt this realistic approach, the collective nature of the crime may become a shield for offenders, allowing individuals to escape liability by denying specific intent. Conversely, recognising participation and outcome as sufficient to infer concerted action ensures that the law remains effective and responsive to the challenges posed by mob violence. However, Section 103(2) is not without its limitations. Its confinement to cases of death, its silence on instigators operating behind the scenes, and the continued evidentiary challenges in proving participation demonstrate that the provision is not a complete solution. but leaves several gaps unaddressed. Thus, Section 103(2) stands at a critical intersection; it is both a shield and a lacuna. It functions as a shield in recognising mob violence and imposing collective liability, yet it remains a lacuna due to its limited scope and interpretative uncertainties. The way forward lies in adopting a balanced judicial approach that upholds the fundamental principles of criminal law while also recognising the unique nature of mob crimes, coupled with broader legislative reforms to establish a comprehensive and effective framework to address all forms of mob violence.
[2]Kaushal Kishor vs The State of Uttar Pradesh Govt. Of U.P. on 3 January, 2023
[3] ibid
[4] Section 103(2) of BNS, 2023.
[5] The term “lynching” is believed to have originated in 18th-century America and is associated with Charles Lynch and William Lynch, who were linked to the practice of extra-judicial punishment.
[6] Shilpa Roy, Mob lynching: the epidemic of new India
[7] Tehseen S. Poonawalla and others v. Union of India, AIR 2018 SCC 498
[8] Madras Bar Association v. Union of India & Another, (2022) 12 SCC 455.
[9] Tehseen S. Poonawalla v. Union of India, AIR 2018 SCC 498.
[10] Masalti v. State of Uttar Pradesh, AIR 1965 SC 202.
[11] Lalji v. State of Uttar Pradesh, AIR 1989 SC 754.
[12] Aravinth and 2 Ors., v. State of Tamil Nadu, Crl. OP (MD) No.11139 of 2025, order dated 08.07.2025.
